Imágenes de páginas

slightly argued; yet, it is a provision not to

CONTRACTS—MUTUALITY. be disregarded, though merely directory, like that requiring the legislature to use

NATIONAL SURETY CO. V. CITY OF good English. But though the provision

ATLANTA. is not to be disregarded, it is to be observed according to some construction, and should

Court of Appeals of Georgia Division No. 2. receive such a one as to obviate its incon

February 7, 1920. Adhered to on veniences and objectionable character, as

Rehearing February 23, 1920. far as consistently can be done."'24

102 S. E. 175. In cases reversed, the court construes that provision of the constitution to not re

(Syllabus by the Court.) quire an opinion on every point presented by the record, but only enough to compel

An instrument in writing purporting to be a a reversal. Under this construction, a dis bilateral contract, as set out in the first count

of the petition, wherein only one of the parties cussion of a single question which requires

promises to perform, there being no objection a reversal is all that need be covered by the on the part of the other party, lacks mutuality

and is a nudum pactum. opinion; and the query is why do the judges not always follow that plan and relieve

The city of Atlanta brought suit against the themselves of the great burden of the

National Surety Company, alleging a breach preparation of unnecessarily long opinions.

on the part of the defendant as guarantor upon The provision of the constitution does not a bond guaranteeing to the plaintiff the pernecessarily require the preparation of long

formance of certain obligations assumed by the opinions. The short opinions at the end of

Tennessee & Southeastern Coal Company under

alleged contract between the coal company and each volume of many state reports in re

the city of Atlanta, whereby the coal company cent years are evidence of that fact. Of

promised to furnish and deliver to the city of course, those kind of opinions cannot be Atlanta coal in certain carload quantities at used in all instances; and no one desires certain intervals during a period of 12 months. such opinions in all cases. But that provision

The alleged contract provided that the coal

company would furnish the coal upon orders of does not require nor call for arguing, and

a designated officer of the city, and contained much less controversial opiņions, the abomi

a provision as follows: nation of the reports.25

"After a verbal or written notice to suspend I think the profession would greatly ap- l deliveries under this contract, a further notice preciate short, clear, concise opinions, with

may be served in writing to suspend deliveries

of coal, and the city will be at liberty to rea few—a very few-citations clearly in fuse to accept any coal delivered after fortypoint, devoid of the essay characteristics,

eight hours from date of such written notice.” free from long quotations, without discus The petition set out the bond and the alleged sion of a statement of elementary principles contract between the coal company and the of the law (which every lawyer ought to

city, which was executed by both parties, and

alleged a failure upon the part of the coal know), and without syllabi straddling over

company to carry out its promises and underhalf the universe.

takings therein contained, and that by reason W. W. THORNTON. Indianapolis, Ind.

of such failure the defendant breached the

bond sued on, to the damage of the plaintiff. (24) Willetts v. Ridgway, 9 Ind. 369. (25) "It is not every case which will justify

The petition contained two counts. The first the expenditure of time necessary to write an count alleged the existence of a contract beand are appealed only for delay. It can serve

tween the coal company and the city of At

lanta by the terms of which the coal company principles of law which have never been questioned for centuries. The Court must therefore was obligated to furnish coal to the city of Atexercise its own discretion as to the necessity

lanta as above stated, and alleged a breach of

the same by reason of the failure on the part oral or in writing. In the exercise of that cretion, the authority of the Court is absolute. of the coal company to perform, to the damage The legislative department is incompetent to

to | of the city, thereby constituting a breach of touch it." Houston v. Williams, 13 Calif. 24.

opinion. Many cases involve no new principles,

no purpose of public good to report elementary

of giving an opinion upon pronouncing judgment, and if one is given, whether it shall be

the bond. The second count alleged written certain directions as to quantities and times of communications from the city to the coal com- delivery by the city. Nowhere therein does the pany from time to time throughout the year, city obligate itself to take the coal or any ordering coal in piecemeal lots, in accordance | part thereof. The past acceptance of the bid with the promises and obligations of the coal by the city, and the promise on the part of the company as contained in the alleged contract, city to pay for the coal at so much per ton, reand also the refusal and failure on the part of cited as a consideration for the promise of the the coal company to furnish the coal in com. coal company, cannot be regarded as a pliance with such orders to the damage of the consideration. A past consideration or an city, thereby constituting a breach of the bond. existing contractual obligation between The defendant demurred to the petition, upon the parties generally does not support the ground that the alleged contract attached a promise. The stipulation that the city agrees thereto was void for want of consideration, that to pay so much per ton for the coal which it it was lacking in mutuality, and fixed no bind. orders does not obligate the city to take any ing obligation upon the city, and, there being coal or to pay for any coal except that which no contract to be performed, there appeared it does order. The city not being bound to no breach of the bond, which had been given order or accept any coal, both parties were not to secure the performance of a contract which | bound, and there was no contract as set out did not exist, and that the petition failed gen in the first count of the petition. erally to set out a cause of action.

2. The promises and undertakings of the STEPHENS, J. (after stating the facts as above). The sole question for determination

coal company must therefore be considered as is whether or not there ever existed a con

amounting only to an offer by the coal company

to contract with the city, which promises and tract between the parties as set out in either count of the petition. If there was no contract,

undertakings would become binding as a conthere was no breach of the bond given to guar

tract between the parties only upon acceptance

by the city. There being, as a part and condiantee the performance of the contract.

tion of the offer, a provision allowing the city 1. The alleged contract which was attached

to suspend deliveries of the coal, the action to the petition contained certain promises and of the city in ordering coal under the terms obligations on the part of the coal company, of the offer in installments from time to time, but did not contain any executed consideration without at once in the beginning obligating it. or promise or undertaking on the part of the self to make further orders, amounted to an city. It purported to be a bilateral contract; i.

acceptance of the offer of the coal company, e., a contract executory on both sides. The which action by the city created a binding concity not being obligated to the performance of tract with the coal company respecting the coal any promise, and there being no mutual prom

actually ordered by the city. The right of the ises as a consideration for each other, the al

city to suspend deliveries of coal did not apply leged contract is lacking in mutuality and to any order for coal made by the city when therefore void. After reciting that the city of delivered by the coal company before the exAtlanta had accepted a bid of the coal com

| piration of 48 hours from the date of notice pany to furnish coal to the city, which bid was by the city to the coal company to suspend attached to the instrument as an exhibit, and deliveries. The city therefore became bound contained promises by the coal company only for all coal which it actually ordered under and the terms upon which the coal company the terms of the offer, and could not relieve it. would for a period of one year furnish coal to

s self of such obligation by any notice to the coal the city of Atlanta, the instrument provided : company to suspend the delivery of the coal "That for and in consideration of the prom

so ordered unless the coal company delayed the ises and the acceptance of the bid of said con delivery until after 48 hours from the date of tractor by said city, as above set out, and in

notice to it by the city to suspend the delivery, consideration of the promise on the part of the said city to pay said contractor the sum of

Both parties therefore became bound as re$2.50 per ton, said Tennessee & Southeastern spects orders actually made by the city; the Coal Company, contractor aforesaid, hereby coal company being bound to make, and the agrees as follows:”

city being bound to accept, deliveries. There There is then set out the promises of the was therefore a contract as set out in the secTennessee & Southeastern Coal Company and ond count of the petition, and it follows that the terms and conditions under which it will the failure of the coal company to make de furnish coal to the city of Atlanta, subject to liveries of coal actually ordered by the elty

constituted a breach of this contract, for which the coal company was liable to the city in damages.

Judgment affirmed.
SMITH, J., concurs.
JENKINS, P. J., concurs in the judgment.

ery and payment, so that neither party can withdraw from it during the contract period. The Court said: “Where the performance of a contract is not compulsory on one party and he has an election to perform or not as he chooses, and he elects to perform his part of the contract, and the other party accepts his election, the want of mutuality is thereby eliminated, and he may then have a specific performance * * * although no cause of action would originally lie for a breach of performance." In that case, however, there was aliunde evidence to show the acceptance of what was done was as a part of the whole.





Note-Contract Lacking in Mutuality Good a. Offer.-The instant case, it appears, does not hold that the contract which was entered into was wholly void, but only void to the extent claimed. It stood as an offer for whatever deliveries the obligee thereunder might order.

Thus in American Refrigerator Transit Co. v. Chilton, 94 Ill. App., p. 6, there was a contract for delivery of ice at the rate of $3.50 a ton for one year, which was held void for want of mutuality. The Court said: “The contract had the effect merely to bind appellant to pay $3.50 per ton for such ice as should be ordered and delivered to it. Further than that, it had no binding price for want of mutuality.”

In Cold Blast Transp. Co. v. Kansas City Bolt & Nut Co., 114 Fed. 77, 52 C. C. A. 25, Sanborn, Cir. J., in speaking of contract void for want of mutuality, says: "Accepted orders for goods under such void contracts constitute sales of the goods thus ordered at the prices named in the contracts, but they do not validate the agreements as to articles which the one refuses to purchase, or the other refuses to sell or deliver, under the void contracts, because neither party is bound to take or deliver any amount or quantity of those articles thereunder.” For this he cites the following cases: Crane v. C. Crane & Co., 105 Fed. 869, 45 C. C. A. 96; Oil Co. v. Kirk, 68 Fed. 791, 15 C. C. A. 540; Campbell v. Lambert, 36 La. Ann. 35; Ry. Co, y. Mitchell, 38 Tex. 85, 95; Ashcroft v. Butterworth, 136 Mass. 511, 514; Drake v. Vorse, 52 Iowa 417, 3 N. W. 465; Hoffman v. Maffioli (Wis.), 80 N. W. 1032, 1035, 47 L. R. A. 427.

In the last case cited the Court, through Cassaday, C. J., speaking of a contract void as lacking in mutuality, said: · "The writing so submitted by the plaintiff was a mere proposal to furnish stone described, at the prices named, and deliver the same on the street in the city of Waukesha in such quantities as might be desired."

In Crane v. C. Crane Co. supra, where the contract was held void for lack of mutuality, the prices fixed by the contract were allowed, and no recoupment for damages was permitted for sales subsequent to notice of rescission.

This rule certainly ought to be a good rule insofar as it may be invoked against one refusing to perform, because of the lack of mutuality. He ought not to be allowed to appear to be complying with the contract and then refuse to pay the price therein fixed. It would seem, however, to have the capability of harm to the other side, who might be able to prove a higher market value than the contract rate. But, then, he ought to have known better than to enter into a contract void for lack of mutuality.

Thus it was held in L. & N. R. Co. v. Coyle, Ky.. 97 S. W. 772, 8 L. R. A. (N. S.) 433, that an indefinite offer to furnish within two years 'ties, up to a maximum number, which is followed by an acceptance of all that can be furnished within a year, was held to be binding upon deliv

The Forty-Third annual meeting of the Alabama Bar Association will be held in Birmingham, in the ball room of the Tutwiler Hotel on April 30th and May 1st, 1920.

The meeting will be opened at 10:30 Friday morning by the address of the President, Mr. J. T. Stokely of Birmingham.

In addition to the usual reports of committees there will be the following papers and addresses: “The Centennial of the Supreme Court of Alabama," by Hon. John C. Anderson; "Our Judges in a Primary,” by Mr. W. 0. Mulkey; “Recent Legislation," by Mr. Sam Will John; “Constitutional Government in America,” by Hon. Wm. H. Samford; "Forcible Entry and Unlawful Detainer," by Mr. Travis Williams; "Three Lawyers of the Black Belt," by Hon. Edw. de Graffenried.

The annual address will be given by Hon. A. Mitchell Palmer, whose subject will be, "Law Enforcement or the Enforcement of the Law.



Editor, Central Law Journal:

Your favorable comment upon my communi. cation, published in your issue of March 19th, contains near its close a statement inviting from me, with your permission, a short reply. You say "that the Southern States made that argu. ment in order to retain slaves, which was undoubtedly a right of a citizen of England at the time of the resolution."

That is not a correct statement of the argu slavery and it was in English boats and by ment of the Southern States in defense of their

English slave traders that the institution of

slavery took root in the English Colonies. The right to secede. They based their rights upon

only point in our comment was in pointing out the sovereignty of the respective Colonial States,

whatever analogy there might exist in previous when they agreed to form the political and gov Amendments of the Constitution to the Eigh

teenth Amendment in respect to the subject mat. ernmental corporation we call the “United

ter of the Amendment. We admit that there States.” That sovereignty they never parted

is no very close analogy between the Eighteenth with, and still exists.

Amendment and any previous Amendments, but No white man or woman brought with him or it did seem to us that if by the process of

Amendment the question of suffrage, a matter her from England a common law right to en.

of state regulation, can be controlled by Con. slave negroes or Indians in the colonies they stitutional Amendment that there could be litfounded here. The institution of human slavery tle ground for the contention that there were in the English colonies of America is the crea

certain inalienable rights reserved for the state's

exclusive control which could not be brought tion of the respective colonies themselves, as

within the jurisdiction of the federal governColonial States. It was part of their rights as mert by process of Constitutional Amendment. citizens of the Colonies, and not as subjects of We do not wish, however, to take any position Great Britain. Blackstone tells us:

on this question for the present. Just how far

the independence of the states can be destroyed "The idea and practice of this political or

without destroying at the same time the concivil liberty flourish in their highest vigor in

tract by which the union was formed we are these kingdoms, where it falls little short of per

not prepared to say.--Editor.] fection, and can only be lost or destroyed by the folly or demerits of its owner; the legislature, and, of course, the laws of England, being pecu. liarly adapted to the preservation of this in. estimable blessing even in the meanest subject.

HUMOR OF THE LAW. Very different from the modern constitutions of other states, on the continent of Europe, and from the genius of the imperial law; which in

"Why are you against government ownership general are calculated to vest an arbitrary and despotic power, of controlling the actions of the

of railroads?" subject, in the prince, or in a few grandees. "Because it will do away with those beautiful And this spirit of liberty is so deeply implanted 1. railroad advertisements on travel.”—Judge. in our constitution and rooted even in our very soil, that a slave or a negro, the moment he lands in England, falls under the protection of the laws, and so far becomes a freeman.” 1

The need for higher educational standards Blackstone Comm. (19th London Edition) star.

for admission to the bar is clearly shown by p. 127.

the closing paragraphs of a petition recently The 13th, 14th, and 15th amendments to the

served on the Minneapolis Tribune. Through Federal Constitution are valid, as war measures, the consent of the latter's counsel we quote the suggested by the experiences of the States, and

last two paragraphs of this petition: adopted to prevent a recurrence of them by re

"That the plaintiff will necessarily need, in moving their cause, the institution of Negro

the above injuries, doctor's and nurses care and Slavery.

medical and surgical treatment so as to leviate Not a single personal common law right of

said damage caused by said defendant and citizens of States is affected detrimentally by

which sum of money plaintiff pleads as contintany one of those amendments. On the contrary,

ing damages. their only effect is to enlarge these personal

"That during all times mentioned the plainrights. They comply with the requirements of

tiff was earning and capable of earning $65.00 Article V of the Constitution. They were nec

(Sixty-Five Dollars) a week in and about his essary to the stability and peace of the Union.

employment as a licensed chauffeur and by reaFREDERICK G. BROMBERG.

son of said defendant, the plaintiff is totally Mobile, Alabama.

capsized and will be for a long period of time [The editor's suggestion with respect to the

and and for which damage, plaintiff pleads for 13th, 14th and 15th Amendments was not in continueing damages in this action. WHERE tended to convey any intimation that these FORE: Plaintiff prays judgment against DeAmendments were not a part of the Constitus

fendant in the sum of $5,000 (Five Thousand tion. They are not only a part of the Constitution but in striking down the institution of

Dollars) together with such damage which may human slavery they effected one of the most be proposed herein, together with interest at salutary reforms of human society. Mr. Brom

the rate of six per cent per annum from the berg is correct in his assertion that slavery was

5th day of October, 1919, to the cost and dis. not recognized in the British Isles. But the English Courts recognized the institution of 1

| bursements of said action."


evidence, the judge is at liberty to draw his own inferences and deduce his own conclusions.---Walter V. Atha, U. S. C. C. A., 262 Fed. 75.

93 54






Weekly Digest of Important Opinions of the

7. Banks and Banking-Forgery.--Bank lia

ble to depositor for money paid on check signed State Courts of Last Resort and of the Federal

in blank and filled in and indorsed in anotner's Courts.

name by third person.--Citizens' Nat. Bank 01 Copy of Opinion in any case referred to in this digest

Evansville v. Reynolds, Ind., 126 N. E. 231.

8. Bills and Notes-Non Est Factum.-In an may be procured by sending 25 cents to us or to the West

action on a note, defendant's plea of non est Pub. Co., St. Paul, Minn.

factum imposed on plaintiff the burden to prove the signing, selling, and delivery of the note to which the plea was interposed; such three facts

constituting the affirmative of the issue.- Dever Arkansas ...


v. Silver, Md., 109 Atl. 67. California................13, 15, 23, 58, 76, 77, 79, 94, 96 Delaware ...

9.- Renewal.-Where a renewal note is Florida

given instead of another which represented part Georgia... ............1, 14, 18, 49, 52, 72, 80,

of the indebtedness on a certain transaction, Idaho........

whatever defenses were available as against Illinois..

original note, were equally available as against ........24, 29, 38, 41, 55, 83, 84, Indiana...

renewal note so long as the transaction reIowa..

mained one between the original parties.-In

ternational Harvester Co. of America v. Thomas, Kansas. Kentueky..

N. D., 176 N. W. 523.

...12, 22, 81 Louisiana ...

10. Carriers of Passengers-Employes.Maryland..

Workmen being transported to their place of Massachusetts

work by the master, at his expense and in their Michigan........

..........2, 30, 40, 42, 85, 92, 97 work time, are not passengers, but employes. Minnesota..

.16. 20, 6 Maryland Dredging & Contracting Co. v. State Missouri...

37. 5

of Maryland, U. S. C. C. A., 262 Fed. 11. Montana........

70 11. Champerty and Maintenance Strangers Nebraska.....

to Contract. -Strangers to a champertous conNew Hampshire ...

tract cannot take advantage of it; only a party New York...

to it can do so.---Harrison V. Harman, W. Va., North Carolina..

102 S. E. 224. North Dakota...


12. Commerce Employe. That a railroad Ohio

empioye when injured was assisting in loading Oklahoma.


old rails on a car for delivery and shipment Oregon

because they had been sold is insufficient to South Dakota.


show that he was injured while employed in Texas


interstate commerce.-Illinois Cent. R. Co. v. U. s. C. C. App.....4, 5. 6, 10, 21, 26, 46, 57, 64, 90 United States D. C...

Probus, Ky., 218 S. W. 724.

3, 31, 89 Utah

13.--Foreign Corporation.-Right of foreign Vermont .....

corporation, after complying with California

.............32, 60 West Virginia. .....11, 19, 50, 53, 68, 86

laws as to foreign corporations, to carry on in

terstate business, and to acquire and convey 1. Bailment-Action by Bailee.-A bailee, en

real estate necessary therefor and maintain titled to the possession of the propertyba iled,

actions to protect its rights therein, is not subhas such a special interest therein as entitles

ject to taxation by the state, though instrumenhim to maintain in his own name a suit against

talities by means of which it carries on such a third party for its loss or destruction for the

commerce, and which have a local situs as propbenefit of the owner.-Marietta Ice & Coal Co.

within the state, are taxable by it. People v. Western & A. R. Co., Ga., 102 S. E. 182.

V. Alaska Pac. S. S. Co., Cal., 187 Pac. 742. 2. Bankruptcy - Burden of Proof.- Where

14. Conspiracy-Declaration by Coconspirabankrupt's wife, shortly after the bankruptcy,

tor.-Where once the conspiracy or mutual is in control of considerable property, she has

scheme to defraud has been established, the act the burden of proving. by clear and satisfactory

or declaration of one of the parties in the prosevidence, the means whereby she acquired pos

ecution of the enterprise is considered the act session of such assets.-Eberline V.Prager,

or declaration of all.-Holbert V. Allred, Ga., Mich., 176 N. W. 428.

102 S. E. 192. 3.- Creditor.--The word "creditor," as used

15. Contracts-Extrinsic Evidence. in General Orders in Bankruptcy No. 4, (89 Fed.

struction of a contract where it is to be arrived iv. 32 C. C. A. viii). does not include the agent,

at from a mere reading of the instrument, or

from such reading aided by extrinsic evidence attorney in fact, or proxy of a creditor, and

of circumstances and the like, is a matter of under such order and No. 22 a creditor cannot

law.-Brett v. Vanomar Producers, Cal., 187 Pac. appoint a representative, who is not an attorney

758. and counselor at law, to examine witnesses before a referee.--In re Looney, U. S. D. C., 262 16.- Impossibility of Performance.- Where Fed. 209.

no provision as to the event of impossibility is 4.- Discharge.--Under Bankruptcy Act, $

found in a contract containing an absolute

promise, the promisor remains responsible for 14a (Comp. St. $ 9598). limiting the time for

damages notwithstanding the supervening imfiling application for discharge to 18 months from date of adjudication. a bankrupt is not

possibility of performance. Mascall V. Reitentitled, on an application filed in a second pro

meier, Minn., 176 N. W. 486. ceeding more than 18 months after his first ad

17.--Liability.--Act of one party in making judication, to a discharge from debts provable new arrangement preventing execution of conin the first proceeding.-Monk v. Horn, ('. S. C.

tract obligations cannot avoid his liability to C. A., 262 Fed. 121.

another.Suter V. Farmers' Fertilizer Co., O.,

126 N. E. 304. 5.- Equitable Lien.-Sale of property of bankrupt on which a creditor had an equitable

18.- Mutuality.-An instrument in writing lien, and payment of the proceeds to the cred purporting to be a bilateral contract between a itor. though within four months of bankruptcy. city and a coal company, whereby the latter for preference purposes relate back to the date promised to furnish and deliver coal, but whereof the contract which they were designed to and in there was no obligation on the part of the did fulfill.-Britton v. Union Inv. Co., U. S. C. city to take any coal, lacks mutuality and is a C. A., 262 Fed. 111.

nudum pactum.-National Surety Co. V. City Oi 6.- Finding by Referee.-While a finding of

Atlanta, Ga., 102 S. E. 175. fact by a referee on conflicting evidence will not 19. Past Services.--Services rendered and be disturbed, unless there is cogent evidence of benefits conferred gratuitously do not constimistake, yet, if the referee's finding be a de tute a sufficient consideration for a subsequent duction from established facts or uncontradicted I promise to pay therefor, whether such promise

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